GENERAL TERMS AND CONDITIONS OF BUSINESS, SALE AND DELIVERY ("GENERAL TERMS AND CONDITIONS")
The following General Terms and Conditions (“GTC”) shall apply to all orders placed with and all deliveries made by NOMOQ AG (“NOMOQ”), a company incorporated and registered under the laws of Switzerland with its registered office in Zurich in the Canton of Zurich, Switzerland.
These GTC shall apply exclusively; deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that NOMOQ has expressly agreed to their validity in writing.
The following definitions and rules of interpretation shall apply:
Buyer: the legal entity who has bought, or agreed to buy, the Goods.
Delivery Date: the date specified for delivery as agreed by NOMOQ in writing.
Goods: any items sold by NOMOQ.
Insolvency Event: the Buyer becoming insolvent or bankrupt or entering into receivership, administration, liquidation or a composition or an arrangement to reschedule or restructure its indebtedness; the Buyer suspending or ceasing, or threatening to suspend or cease, carrying on its business (or any part or it) or payment of its debts as or being unable to pay its debts as they fall due; a resolution being made in connection with the winding up or dissolution of the Buyer; the Buyer obtaining a moratorium; the Buyer having an administrator, receiver, liquidator or manager appointed over the whole, or a substantial part, of its undertaking or assets; or any steps being taken in preparation for the foregoing (whether voluntarily or otherwise); or any event occurring in any jurisdiction to which the Buyer is subject that has an effect of equivalent or similar to any of the above.
NOMOQ: NOMOQ AG as the company supplying the ordered Goods or as otherwise stated to the Buyer in writing.
Order: an order for Goods placed by the Buyer and accepted in writing by NOMOQ or otherwise deemed accepted by NOMOQ upon delivery of the Goods.
The word “including” will be deemed to be followed by the words “without limitation”.
2. OFFER & ACCEPTANCE
2.1 Offers by NOMOQ are non-binding and are subject to change with regard to price, quantity, delivery possibility and Delivery Date. The Buyer may submit a proposed order to NOMOQ verbally or in writing. Such proposed order shall be deemed to be an offer by the Buyer to purchase Goods in accordance with these terms.
2.2 Each proposed order shall only be deemed accepted once confirmed in writing by NOMOQ or, if earlier, when the Goods are delivered to the Buyer (in whole or in part). Upon NOMOQ’s acceptance of an order for the purchase of Goods, a contract shall be formed incorporating these terms and the terms specified in NOMOQ’s written confirmation of the Order (“Contract”). Any terms specified in NOMOQ’s written confirmation of the Order shall take precedence over these terms in the event of a conflict.
2.3 The terms of the Contract constitute the entire agreement between the parties and supersede all other terms that apply to the sale of Goods to the Buyer to the exclusion of all other terms including any quotation, acceptance, acknowledgement, specification, or other communication. All descriptions and statements contained in NOMOQ’s promotional literature and samples are approximate only and shall not form part of the Contract. No modification or amendment of these terms will be binding unless agreed to in writing by NOMOQ.
3. DELIVERY OF GOODS & TRANSPORT MATERIAL
3.1 Unless otherwise stated in NOMOQ’s written confirmation of the Order, delivery of the Goods shall be FCA (Incoterms 2020) at NOMOQ’s premises as specified by NOMOQ to the Buyer.
3.2 Subject to the remainder of this clause, the Delivery Date (including time of delivery) shall be an estimate only and time shall not be of the essence. The Buyer may only reject a delivery as late or assert any other claim based on delay if. (i) a binding delivery time has been expressly agreed in writing by NOMOQ; and (ii) NOMOQ fails to deliver within 14 days after such binding Delivery Date.
3.3 NOMOQ shall be entitled to make deliveries in instalments and each instalment may be invoiced separately.
3.4 Transport material such as pallets and other packaging materials are returnable if clearly marked as returnable in the Contract or on the invoice for the Goods (“Returnable Packaging”). Returnable Packaging shall at all times remain the property of NOMOQ or the respective owner, as the case may be.
3.5 Unless otherwise agreed in writing, the Buyer shall pay to NOMOQ a pallet deposit (“Returnable Packaging Deposit”) according to NOMOQ’s pallet deposit rate applicable on the date of invoice. The applicable pallet deposit rate is available on https://help.nomoq.com/returnable-packaging-material. Such deposit will be invoiced together with the Goods.
3.6 NOMOQ shall refund the pallet deposit if the Buyer returns the Returnable Packaging to NOMOQ: (i) not later than 24 months after delivery; (ii) in good condition being suitable for immediate reuse by NOMOQ; and (iii) in compliance with the requirements as specified at help.nomoq.com. The Buyer shall return the Returnable Packaging in a cost-efficient manner from time to time as agreed with NOMOQ. At the Buyer’s request, if the minimum number of Returnable Packaging as specified at help.nomoq.com is reached, NOMOQ may arrange the collection of such Returnable Packaging subject to a fee. Such fee will be deducted and retained from the Returnable Packaging Deposit. If the Buyer fails to return the Returnable Packaging in the agreed condition within 24 months after delivery, the Returnable Packaging shall be deemed to have been purchased by the Buyer at the then applicable price.
4. PRICE & PAYMENT
4.1 NOMOQ's quantity-based standard price is indicative and based on the quantity of ordered cans of a continuous production order of one design including standard printing, but excluding the can ends. The price payable for the Goods (“Price”) will be as agreed by NOMOQ in writing.
4.2 Unless otherwise agreed in writing, value added tax and any other taxes, duties or levies are not included in the Price. In particular, statutory duties such as the VRB (Vorgezogener Recycling Beitrag - advance recycling fee), Returnable Packaging Deposit or other legally mandatory deposit costs (including DPG, recycling fees, etc.) are not included in the Price, nor are transport material costs outside the categories listed above in this clause. All these supplementary costs will be invoiced separately in addition to the Price.
4.3 Prices are subject to change for future costs at NOMOQ’s discretion at any time prior to delivery or invoicing of the Goods (whichever is earlier) to reflect changes in applicable laws or introduction of new laws or regulations, increases in taxes, duties, levies and tariffs, foreign exchange fluctuations and increases in the costs of production, material, labour, freight and energy.
4.4 Invoices are issued together with the Order; NOMOQ requires payment in advance prior to manufacture and delivery of the Goods. Invoices shall be payable within 14 days of the invoice date by electronic bank transfer to the account and in the currency stated on the invoice. Any queries must be raised with NOMOQ in writing within 10 days of receipt. The Buyer shall pay interests on any outstanding and due amounts at the rate of five percent from the due date until the date of payment. In the event of extrajudicial or judicial collection of the due claims, the Buyer is obliged to reimburse the associated and incurred reminder, collection and court costs and all other expenses incurred.
4.5 Time for payment is of the essence. If the Buyer enters into (or becomes reasonably likely to enter into) an Insolvency Event or if the Buyer fails to pay any amount due for payment, NOMOQ may refuse to accept any further proposed orders from the Buyer.
4.6 The Buyer shall pay all amounts due in full without any deduction, set-off, counterclaim or withholding, unless a deduction or withholding of tax is required by law (in which case the Buyer shall pay such sum to ensure NOMOQ receives the full amount invoiced).
5. TRANSFER OF RISK & TITLE
5.1 Risk in the Goods shall pass to the Buyer upon delivery. The Buyer shall be fully responsible, at its own expense, for insuring the Goods against damage during the shipping period and shall be able to provide proof of such insurance upon NOMOQ's reasonable request.
5.2 Notwithstanding delivery, NOMOQ shall retain the title of ownership to the delivered Goods including transport material until the Price and the invoiced supplementary costs have been paid in full. The Buyer may use or fill the Goods in the ordinary course of its business before title passes; however, if it does so: (i) it shall act as principal and not as NOMOQ’s agent; and (ii) title to the relevant Goods shall pass to the Buyer immediately before the use or filling. If the Goods are damaged after risk has passed, title shall pass to the Buyer immediately prior to the occurrence of such damage. If the Buyer has used or filled the Goods before full payment of the Price and the invoiced supplementary costs have been received by NOMOQ, NOMOQ shall become co-owner of the processed goods in proportion to the delivery value of its reserved goods. Until all due claims of NOMOQ against the Buyer have been settled in full, the Buyer hereby assigns to NOMOQ all claims, including all ancillary rights, to which the Buyer is or will be entitled from the sale or for any other legal grounds with regard to the processed goods subject to retention of title, and NOMOQ hereby accepts such assignment.
5.3 If before title passes to the Buyer, the Buyer becomes subject to an Insolvency Event, without limiting an other right or remedy, the Buyer’s right to use or fill the Goods in the ordinary course of business ceases immediately and NOMOQ may at any time: (i) require the Buyer to deliver up all Goods in its possession; and (ii) enter any premises where the Goods are stored and recover them.
6. RESPONSIBILITY FOR DEFECTS
Subject to reasonable manufacturing variations and tolerances, upon delivery the Goods shall comply with NOMOQ’s specifications for such Goods in all material respects and shall be fit for the purposes, in each case, as expressly agreed in writing.
6.2 In respect of Goods of which NOMOQ has conducted successful corrosivity tests with a specific named product (“Approved Filling Product”), NOMOQ shall warrant that the Goods are compatible for filling with the Approved Filling Product, subject to any limitations set out in writing by NOMOQ.
6.3 Save as set out in clauses 6.1 and 6.2, all warranties, representations and guarantees as to the quality of the Goods, their fitness for a particular purpose, their correspondence with descriptions or samples (including promotional materials or samples provided by NOMOQ), their life or their wear, whether express or implied and whether on the basis of law, statute, trade customs, conduct of the parties or otherwise, are hereby expressly waived and excluded.
6.4 Save as set out in clause 6.2, NOMOQ makes no warranty, representation or guarantee that the Goods shall be suitable for the purpose of being filled with specific items; the shelf life of the Goods or of any items contained within the Goods; that the Goods will comply with foreign laws; nor that the Goods once filled or otherwise used will comply with applicable laws (including foreign laws) or regulations relating to their sale to the public. The Buyer acknowledges and agrees that it is the Buyer’s responsibility to review and validate the shelf life and suitability of any ordered Goods in the context of their specific use and filling.
6.5 If the Goods do not comply with the requirements of clauses 6.1 and/or 6.2 in any material respect (“Non-Conforming Goods”), NOMOQ’s liability for such non-compliance shall be limited in accordance with this clause 6 and clause 7 below. The Buyer shall not return any Non-Conforming Goods to NOMOQ without NOMOQ’s prior written consent.
6.6 Prior to the Goods being filled and subject to clauses 6.7 to 6.10 and NOMOQ having had the opportunity to inspect the Non-Conforming Goods and confirm the defect, NOMOQ shall (at the option of the Buyer) either replace or repair any Non-Conforming Goods or refund their purchase price. The Buyer shall not return any Goods to NOMOQ without NOMOQ’s prior written consent.
6.7 Once the filling process has commenced, NOMOQ shall only be liable for Non-Conforming Goods if:
(i) the Buyer has used an adequate product traceability system and followed an adequate “First In First Out” filling order procedure resulting in a homogeneous batch of Goods being filled;
(ii) the Buyer has complied with its inspection and notice obligations pursuant to clauses 6.9 and 6.10;
(iii) a representative of NOMOQ has had the opportunity to inspect the Non-Conforming Goods and confirmed the defect;
(iv) the Buyer has not made a change to the Approved Filling Product or the agreed filling conditions without NOMOQ’s prior written approval, and the Buyer has complied with the requirements and guidelines listed in clause 8 “HANDLING, STORAGE, CARE” of this GTC; and
(v) NOMOQ shall not be responsible for any defects in the Non-Conforming Goods which have been caused by the assembly of the Goods with third party can ends or can bodies. Notwithstanding anything to the contrary, NOMOQ shall not be liable for such defects whether the filling process has commenced or not.
6.8 NOMOQ shall not be liable for: (i) any defects resulting from the use of materials or specifications provided by the Buyer to NOMOQ for the purpose of performing the Contract; (ii) any defect, damage or loss caused by accident, neglect or improper use by the Buyer or its agents; (iii) any defect, damage or loss caused by accident or neglect after risk has passed to the Buyer in accordance with clause 5.1.
6.9 Immediately upon delivery, the Buyer shall inspect the Goods. Such inspection shall include reasonable incoming Goods inspections at the Buyer’s facility. Depending on the practice in the relevant industry, the reasonable incoming Goods inspection may include an exterior inspection of batches of Goods immediately upon receipt and a detailed inspection of single Goods during subsequent filling and processing. The Buyer shall make reasonable efforts to ensure that defective Goods are removed before and during filling and processing by providing for short interval intermediate in-line and off-line process control verifications and suitable installed devices.
6.10 NOMOQ shall have no liability whatsoever under this clause 6 or otherwise for Non-Conforming Goods unless NOMOQ receives a written complaint with detailed description of the defect or shortage within the following time periods:
(i) in respect of any shortage or defect which would be apparent from a reasonable incoming Goods inspection as described in clause 6.9, as soon as possible after delivery (and in any event within three business days);
(ii) in respect of any defect which is not apparent from a reasonable incoming Goods inspection, as soon as possible after such defect becoming apparent, provided that the Goods shall be deemed accepted in any event if NOMOQ has not received a complaint within 12 (twelve) months after their delivery.
6.11 The Buyer acknowledges it does not rely on, and shall have no remedies in respect of, any other statement, representation, assurance or warranty (whether made innocently or negligently) save as expressly set out above.
7.1 Subject to clause 7.3, NOMOQ shall under no circumstances whatsoever be liable to the Buyer in contract, tort (including negligence) or otherwise for any third party loss, loss of profit, loss of production, loss of goodwill, loss of business or loss of opportunity and/or for any indirect or consequential loss, incidental, special or punitive damages arising under or in connection with the supply, use and/or sale of Goods and/or the Contract.
7.2 NOMOQ’s total and aggregate maximum liability per Contract to the Buyer in respect of all losses arising under or in connection with the supply of Goods and/or the Contract, shall be limited to 100% of the total price paid for the Goods under the Contract by the Buyer.
7.3 Nothing in these GTC shall limit or exclude NOMOQ’s liability for fraud, fraudulent misrepresentation, gross negligence, death or personal injury or which otherwise cannot be excluded by law.
8. HANDLING, STORAGE & CARE
From transfer of risk, the Buyer shall handle the Goods in accordance with the Handling Guidelines set out at help.nomoq.com and with the utmost care and protection, whether or not specifically instructed by NOMOQ or not. Accordingly, NOMOQ and the Buyer agree, and hereby confirm, that it is the Buyer's own responsibility to inform and take care of the proper handling and appropriate measures of care in the handling of the Goods purchased from NOMOQ, as NOMOQ is not aware of the Buyer's respective intentions. This includes appropriate transport or storage measures in full as long as NOMOQ is not responsible for this due to the agreed Incoterm provisions. Failure on the part of NOMOQ to provide information or instructions under this section to the Buyer and any damages arising therefrom shall not entitle the buyer to any claims against NOMOQ at any time or under any circumstances. In particular:
- Cans must not freeze at any time, especially during transport (e.g. in winter);
- Cans must not be dropped or thrown, as this can lead to hairline cracks in the aluminium or the coatings.
- Open packaging with perishable contents must be separated immediately (!) from the other packaging and disposed of as quickly as possible for hygienic reasons;
- Pallets must always be suitably secured.
NOMOQ is not responsible for any damage resulting from improper handling of the goods, including but not limited to the following: Storage, filling, sealing or thermal treatment of the goods after packaging.
NOMOQ is not responsible for any damage resulting from the interaction between the product and the cans, NOMOQ's warranty or any of its certificates, and improper filling, storage, sealing or heat treatment after packaging of a product.
Any recommendations on the use, storage, transport and/or application of Goods, including consumption, are made to the best of our knowledge and belief, but are non-binding, without any claim to completeness or correctness and to the exclusion of any warranty and liability.
7. RESPONSIBILTY, INTELLECTUAL PROPERTY & RIGHT OF REFUSAL
9.1 The Buyer is solely responsible for the design of the Goods. It is the sole responsibility of the Buyer to ensure that it has the necessary trademark, design and image rights, font rights and other intellectual property rights used; the Buyer must verify the legality of the information provided on the Goods, including the declaration of ingredients and the nutritional value table printed on the Goods. If the Buyer distributes the filled Goods to the market, it is his sole responsibility to ensure that the declarations made on the Goods comply with all applicable laws and regulations in its distribution markets. NOMOQ has the right to disclose Buyer' identity to any third party claiming that any material uploaded by the customer to NOMOQ’s site constitutes a violation of their intellectual property rights.
9.2 By requesting a sample and/or placing a proposed order on NOMOQ’s website, the Buyer or prospective buyer represents and warrants that it has all the necessary permissions, rights, and authority to propose the order and to authorise NOMOQ to produce the ordered Goods. The Buyer hereby indemnifies and shall keep NOMOQ and NOMOQ’s affiliates indemnified on demand from and against all claims and any losses, damages, expenses, penalties and costs suffered or incurred by NOMOQ or any of its affiliates as a result of or in connection with any breach or infringement of third party rights (including patent rights, rights in design, trademark rights and copyrights), to the extent such breach or infringement is caused (directly or indirectly) by any designs, specifications, Customer Material or other material provided by the Buyer or prospective buyer to NOMOQ for the purpose of performing the Contract.
9.3 The Buyer hereby grants NOMOQ a royalty-free, sub-licensable, worldwide license to use any designs, specifications and materials supplied to NOMOQ by or on behalf of the Buyer, solely for the purpose of supplying the Goods to the Buyer pursuant to the Contract. NOMOQ is hereby entitled to copy, modify, distribute, use and create derivative works of and vectorize any content Buyer or prospective Buyer has uploaded for the purpose of fulfilling the proposed order.
9.4 Whenever the Buyer or prospective buyer makes use of a feature that allows to upload material to NOMOQ’s site (“Customer Material”), Buyer or prospective buyer must comply with the content standards set out below in sections A and B (“Content Standards”). Buyer or prospective buyer shall hold harmless and indemnify NOMOQ from any and all liability, loss, damages, costs, or expenses which are sustained, incurred, or required arising out of a breach of the Content Standards by the Buyer or prospective buyer – this applies irrespective of NOMOQ making use of its right of refusal mentioned in this section or not.
A. Customer Material must:
- a. be accurate (where it states facts);
- b. be genuinely held (where it states opinions); and
- c. comply with the law applicable in the EU and in any country from which it is uploaded.
B. Customer Material must not:
- a. be defamatory of any person;
- b. be obscene, offensive, hateful or inflammatory;
- c. promote sexually explicit material;
- d. promote violence;
- e. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- f. infringe any intellectual property rights of any third party;
- g. be likely to deceive any person;
- h. breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
- i. promote any illegal activity;
- j. be in contempt of court;
- k. be threatening, abuse or invade another's privacy, or cause annoyance, inconvenience or needless anxiety;
- l. be likely to harass, upset, embarrass, alarm or annoy any other person;
- m. impersonate any person, or misrepresent the identity or affiliation with any person;
- n. advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse; or
- o. contain a statement which Buyer or prospective buyer knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducements to the commission, preparation or instigation of acts of terrorism.
9.5 In addition to complying with the Content Standards, Buyer or prospective buyer agrees that uploading the Customer Material to NOMOQ’s site will be done at Buyer’s or prospective buyer’s own risk. Buyer or prospective buyer must retain a copy of the Customer Material that is uploaded. NOMOQ expressly excludes all liability for any uploaded Customer Material which is lost or damaged during or after the uploading process.
9.6 Failure to follow NOMOQ’s online preparatory instructions (as shown under www.nomoq.com and updated from time to time) for uploading Customer Material may result in poor quality of the Goods. NOMOQ accepts no responsibility for poor quality of Goods as a result of Buyer’s or prospective buyer’s failure to follow the preparatory instructions for uploading Customer Material.
9.8 NOMOQ reserves the right, at its sole discretion, to refuse to accept any Customer Material or to refuse to process or fulfil any proposed order at any time and for any reason. Buyer or prospective buyer will receive a full refund of any sums already paid for an order NOMOQ refuses to fulfil, to the extent that the refusal is not legally grounded on the misbehaviour of the Buyer or prospective buyer.
9.9 NOMOQ further reserves the right, at its sole discretion, to temporarily or permanently suspend and/or terminate its services to the Buyer or prospective buyer at any time and for any reason, including, without limitation, Buyer’s or prospective buyer’s breach of these GTC. Buyer or prospective buyer agrees that NOMOQ shall have no liability of any kind to customer or to any third party arising from such refusal, suspension or termination.
10.1 Without prejudice to any other right or remedy, NOMOQ shall be entitled to terminate a Contract and/or cancel any Order or instalment immediately upon written notice, without liability, if: (i) the Buyer fails to make a payment in full on the due date for payment; (ii) the Buyer commits any other breach of a Contract; or (iii) the Buyer suffers an Insolvency Event.
10.2 NOMOQ shall have the right at any time to terminate any Contract with the Buyer and/or cancel any Order or instalment on providing at least thirty days’ prior written notice to the Buyer.
10.3 Upon termination or cancellation, clauses which expressly or by implication survive termination or cancellation shall continue in full force and effect
11. FORCE MAJEURE
NOMOQ shall not be in breach of Contract or be liable for any delay in performing or failure to perform any of its obligations due to circumstances arising at NOMOQ or its suppliers and/or production partners beyond its reasonable control, including but not limited to interruption or failure of a utility service or transport network; act of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; war or armed conflict or the consequences thereof, terrorist attack, riot or civil unrest; nuclear, chemical or biological contamination; malicious damage or sabotage; damage to property; governmental action or intervention, including a lockdown or import/export restrictions; compliance with applicable law; breakdown of plant or machinery; collapse of buildings, fire, explosion or accident; restrictions on energy supply; labour or trade disputes, strikes, industrial action or lockout; non-granted permission; extreme transport or weather conditions; and/or non-performance by suppliers. NOMOQ shall inform the Buyer promptly of the force majeure event and shall use reasonable endeavours to mitigate the effect of force majeure on the performance of its obligations.
Each party shall keep all information which it has obtained from the other party in connection with the Contract confidential. The confidentiality obligation shall not apply to information that: (i) is required to be disclosed by law, court order or any governmental or regulatory authority; (ii) is already known to the receiving party at the time of disclosure by the disclosing party; or (iii) is or becomes generally available to the public other than through any act or omission of the receiving party in breach of a Contract. Further, NOMOQ shall be entitled to disclose confidential information in connection with a financing, a sale of shares in, or the assets of, NOMOQ and/or any of its affiliates.
13.1 If any provision or part-provision of a Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any such modification shall not affect the validity and enforceability of the rest of the Contract.
13.2 No failure or delay in exercising (or exercising in full) any right or remedy shall constitute a waiver or abandonment of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
14. JURISDICTION & GOVERNING LAW
14.1 The Contract and any dispute or claim (including disputes or claims relating to non-contractual obligations) arising out of or in connection with it, its subject matter or formation shall be governed by the laws of Switzerland, excluding the conflict of law provisions and the United Nations Convention on Contracts for the International Sale of Goods.
14.2 The courts of Zurich, Canton Zurich, Switzerland shall have exclusive jurisdiction over any dispute or claim (including non -contractual disputes or claims) arising out of or in connection with the Contract, its subject matter or formation.
® NOMOQ is a registered trademark of NOMOQ AG.
Last updated August 2023
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